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[Federal Register Volume 77, Number 118 (Tuesday, June 19, 2012)]
[Rules and Regulations]
[Pages 36400-36403]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14713]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2011-0775; FRL-9688-3]

Approval and Promulgation of Air Quality Implementation Plans; 
Texas; Determination of Failure To Attain the 1-Hour Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is taking final action to determine that the Houston/
Galveston/Brazoria (HGB) area did not attain the 1-hour ozone national 
ambient air quality standard (NAAQS) by its applicable attainment date, 
November 15, 2007. This determination is based on three years of 
complete, quality-assured and certified ambient air quality monitoring 
data for the period preceding the applicable attainment deadline.

DATES: This rule is effective on July 19, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R06-OAR-2011-0775. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, e.g., Confidential Business 
Information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, is not 
placed on the Internet and will be publicly available only in hard copy 
form. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at 
the Air Planning Section (6PD-L), Environmental Protection Agency, 1445 
Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made 
available by appointment for public inspection in the Region 6 Freedom 
of Information Act Review Room between the hours of 8:30 a.m. and 4:30 
p.m. weekdays except for legal holidays. Contact the person listed in 
the FOR FURTHER INFORMATION CONTACT paragraph below or Mr. Bill Deese 
at (214) 665-7253 to make an appointment. If possible, please make the 
appointment at least two working days in advance of your visit. There 
will be a 15 cent per page fee for making photocopies of documents. On 
the day of the visit, please check in at the EPA Region 6 reception 
area at 1445 Ross Avenue, Suite 700, Dallas, Texas.

FOR FURTHER INFORMATION CONTACT: Kenneth W. Boyce, Air Planning Section 
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, telephone 214-665-7259; fax number 
214-665-7263; email address boyce.kenneth@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we'' 
``us'' or ``our'' is used, we mean the EPA.

Outline

I. Background
II. Final Action
III. Statutory and Executive Order Reviews

I. Background

EPA's Proposed Action

    The background for today's action is discussed in detail in our 
February 1, 2012, proposal (77 FR 4937). In that notice, EPA proposed 
to determine,

[[Page 36401]]

under the Clean Air Act (CAA or ``Act''), the HGB ozone nonattainment 
area failed to attain the 1-hour ozone NAAQS by its applicable 1-hour 
NAAQS attainment date of November 15, 2007. The proposal was based on 
three years of complete, quality-assured and certified ambient air 
quality monitoring data for the period preceding the applicable 
attainment deadline (2005-2007).
    The CAA, as amended in 1990, required EPA to designate as 
nonattainment any area that was violating the 1-hour ozone standard, 
generally based on air quality monitoring data from the 1987 through 
1989 period (section 107(d)(4) of the Act; 56 FR 56694, November 6, 
1991). The Act further classified these areas, based on the severity of 
their nonattainment problem, as Marginal, Moderate, Serious, Severe, or 
Extreme.
    The control requirements and date by which attainment of the 1-hour 
ozone standard was to be achieved varied with an area's classification. 
Marginal areas were subject to the fewest mandated control requirements 
and had the earliest attainment date, November 15, 1993, while Severe 
and Extreme areas were subject to more stringent planning requirements 
and were provided more time to attain the standard. Two measures that 
are linked to a determination that a Severe or Extreme area failed to 
attain the standard by the applicable attainment date are contingency 
measures [section 172(c)(9)] and a major stationary source fee 
provision [sections 182(d)(3) and 185)] (``major source fee program'' 
or ``section 185 fee program'').

Designation and Classification

    The HGB area consists of Brazoria, Chambers, Fort Bend, Galveston, 
Harris, Liberty, Montgomery and Waller counties in Texas. Upon the date 
of enactment of the 1990 CAA Amendments, the HGB area was classified as 
a severe ozone nonattainment area for the 1-hour ozone NAAQS. As noted 
above, severe and extreme areas are subject to more stringent planning 
requirements but were provided more time to attain the ozone standard. 
The HGB 1-hour ozone nonattainment area was classified as severe 17. As 
a result, the attainment date for the HGB area was November 15, 
2007.\1\
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    \1\ 56 FR 56694, November 6, 1991 and CAA section 181(a)(1).
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Technical Evaluation

    As we more fully explained in our February 1, 2012, proposal (77 FR 
4937), a determination of whether an area's air quality meets the 1-
hour ozone standard is generally based upon three years of complete, 
quality-assured and certified air quality monitoring data gathered at 
established State and Local Air Monitoring Stations (``SLAMS'') in the 
nonattainment area and entered into the EPA's Air Quality System (AQS) 
database. Data from air monitors operated by state/local agencies in 
compliance with EPA monitoring requirements must be submitted to the 
AQS database. Monitoring agencies annually certify that these data are 
accurate to the best of their knowledge. Accordingly, EPA relies 
primarily on data in its AQS database when determining the attainment 
status of an area. See 40 CFR 50.9; 40 CFR part 50, appendix H; 40 CFR 
part 53; 40 CFR part 58, appendices A, C, D and E. All data are 
reviewed to determine the area's air quality status in accordance with 
40 CFR part 50, appendix H.
    Under EPA regulations at 40 CFR 50.9, the 1-hour ozone standard is 
attained at a monitoring site when the expected number of days per 
calendar year with maximum hourly average concentrations above 0.12 
parts per million (235 micrograms per cubic meter) is equal to or less 
than 1, as determined by 40 CFR part 50, appendix H.
    EPA has determined that the HGB area failed to attain the 1-hour 
ozone standard by its applicable attainment date; that is, the number 
of expected exceedances at sites in the nonattainment area was greater 
than one per year in the period prior to the applicable attainment 
date. This determination is based on three years of complete, quality-
assured and certified ambient air quality monitoring data in AQS for 
the 2005-2007 monitoring period for the HGB area. Please see our 
February 1, 2012, proposal (77 FR 4937) for a more complete description 
and summary of the monitoring data relied upon for this determination.

Comment Received on the Proposed Rulemaking

    The comment period on the proposed rulemaking closed on March 2, 
2012 and EPA received no comments. On May 14, 2012, more than two 
months after the close of the comment period, the BCCA Appeal Group and 
the Section 185 Working Group (``the groups'' or ``BCCA'') submitted a 
late comment opposing EPA's determination that Houston failed to attain 
the 1-hour ozone standard by its attainment deadline. The groups 
acknowledged that this late comment--the only comment submitted by the 
groups--came after the close of the comment period. The groups claimed, 
however, that the comment was ``based on legal grounds arising after 
the close of EPA's comment period.'' The groups contended that an EPA 
rulemaking entitled, ``Final Rule to Implement the 1997 8-Hour Ozone 
National Ambient Air Quality Standard: Classification of Areas That 
Were Initially Classified Under Subpart 1: Revision to the Anti-
backsliding Provisions to Address 1-Hour Contingency Measure 
Requirements; Deletion of Obsolete 1-Hour Standard Provision,'' 77 FR 
28424, 28439 (May 14, 2012) ``reflects EPA's final decision not to 
issue further determinations whether areas (such as HGB) attained the 
1-hour ozone standard by the applicable attainment dates.'' The 
commenters claimed that ``it would be arbitrary and capricious for EPA 
to ignore the May 14 Rulemaking with respect to the HGB area and make a 
finding only with respect to HGB.''

Response to Comment

    EPA believes that there is no justification for this late comment. 
EPA's May 14, 2012 Rulemaking did not give rise to any new grounds for 
comment. First, as the commenters themselves admit, ``the May 14, rule 
preserves the * * * wording'' of EPA's regulation at 40 CFR 51.905 
(e)(2)(i) Thus the commenters concede that the May 14 Rulemaking merely 
preserved the regulation, which existed at the time of EPA's proposed 
determination on Houston, and as to which the groups could have 
commented at that time. The commenters' argument, it seems, centers on 
a few sentences, contained in the preamble of the May 14 rule, which 
refer to the regulation. The commenters offer no explanation for their 
prior failure to address the regulation in comments on EPA's proposed 
determination with respect to Houston. See, 77 FR 4937 (Feb. 1, 2012). 
Since commenters do not claim that the May 14 Rulemaking changed the 
regulation, perhaps what they intend to convey is that EPA's May 14 
Rulemaking reminded the commenters of the regulation's existence. 
Despite their claim of fresh awareness, however, the commenters' own 
actions reveal that they were closely acquainted with 40 CFR 
51.905(e)(2)(i) and with determinations regarding specific anti-
backsliding requirements. For example, in June, 2011, the BCAA Appeal 
Group filed a motion to intervene in the very litigation that resulted 
in EPA's agreement to make final determinations on 1-hour ozone 
attainment for Houston and five other areas in the country. Sierra Club 
v. Jackson (D.D.C. Case No.

[[Page 36402]]

1:11-CV-00100-JDB). In support of their motion, BCCA raised the same 
argument relating to determinations under this regulatory provision 
that they echo here. Similarly, BCCA took another opportunity to 
comment on the issue of the Houston determination in the CAA section 
113(g) proceedings that EPA conducted when it gave notice of the 
settlement agreement that resolved the litigation. Ultimately, however, 
the groups failed to submit any comments on EPA's proposed rulemaking 
to make the Houston determination. The comment period closed on March 
2, 2012. On May 14--just two weeks prior to EPA's deadline for making a 
final determination under the settlement agreement--a deadline known to 
BCCA, as shown by its participation in the litigation and section 
113(g) process--BCCA submitted its comment.\2\ The late comment was 
submitted under the claim that BCCA had just learned of the issue 
through a tangential reference in a correction to a footnote contained 
in a separate EPA rulemaking.
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    \2\ The settlement agreement deadline was May 31, 2012, but was 
extended to June 7, 2012 for the HGB area.
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    Although EPA believes that we are not compelled to respond to 
BCCA's late comments, since the basis for them existed at the time of 
the original proposal, EPA has considered their comment, and we address 
it below.
    As set forth above, EPA's May 14 Rulemaking enunciates no new legal 
position to which the comment is responding. 40 CFR 51.905(e)(2)(i)(A) 
and (B) provide that EPA is no longer obligated to determine ``pursuant 
to section 181(b)(2) or section 179(c),'' * * *``whether an area 
attained by its deadline the revoked 1-hour standard, or to reclassify 
the area as a result.'' 40 CFR 51.905(e)(2). (emphasis added) This 
regulation existed when EPA published its February 1, 2012 proposed 
determination for Houston, and EPA's May 14 Rulemaking did not change 
that regulation. The statements in the preamble cited by the commenters 
merely corrected a portion of a footnote (n.16) in a 2009 proposal 74 
FR 2941, 2942 (January 16, 2009), which had erroneously stated that EPA 
would continue to reclassify areas under the revoked 1-hour ozone 
standard. In the May 14 Rulemaking, EPA stated:
    ``EPA is clarifying that the portion of footnote 16 stating the EPA 
remains obligated to make a finding of failure to attain the 1-hour 
ozone standard by an area's attainment date (under section 181(b)(2) or 
section 179(c)) and to reclassify the area was erroneous and in 
conflict with 51.905(e)(2)(i).'' (emphasis added).

Contrary to commenters' claim, this clarification nowhere states that 
EPA is prohibited from or will no longer make determinations of failure 
to attain the 1-hour ozone deadlines for the purpose of effectuating 
specific 1-hour anti-backsliding requirements as required by the court 
in the South Coast Air Quality Management District, et al., v. EPA, 472 
F.3d 882 (D.C. Cir. 2006) reh'g denied 489 F.3d 1245.
    BCCA`s comments are ostensibly in response to EPA's February 1, 
2012 proposed determination that the Houston nonattainment area failed 
to attain the revoked 1-hour ozone standard by its applicable 
attainment date. EPA's proposal expressly stated that this 
determination is solely for the purpose of effectuating the 1-hour 
ozone anti-backsliding requirements for section 185 penalty fees and 
contingency measures. While BCCA claims that its comment was prompted 
by EPA's May 14 Rulemaking, that Rulemaking specifically declared that 
it did not address 1-hour ozone anti-backsliding for section 185 
penalty fees, and advised that section 185 anti-backsliding issues 
would be addressed in other rulemakings. See, 77 FR 28,424 at 28436 
(May 14, 2012). Thus it is doubly plain that the paragraph entitled ``A 
Correction to a Footnote in Proposed Rule'' in the preamble of the May 
14 Rulemaking was not intended to address or to prohibit EPA from 
proceeding with air quality determinations affecting section 185 anti-
backsliding requirements.
    EPA recently published in the Federal Register final determinations 
that three California 1-hour ozone nonattainment areas failed to meet 
their 1-hour ozone attainment deadlines. See 76 FR 82133 (Dec. 30, 
2011). The rulemakings show that, for the purpose of effectuating 
contingency measures and section 185 anti-backsliding requirements, EPA 
continues to make determinations of failure to attain the 1-hour ozone 
deadlines. The California notices, and the responses to comments they 
contain, explain at length EPA's views of its authority and of its 
obligation to make these determinations. See, e.g., 76 FR 82140. They 
also demonstrate that there is no conflict between 40 CFR 
51.905(e)(2)(i) and EPA's continuing obligations to effectuate specific 
1-hour ozone anti-backsliding requirements through determinations 
regarding attainment deadlines. EPA incorporates by reference the 
extensive discussions of these points contained in the December 30, 
2011 California determinations.
    Aside from its proposed and final determinations for Houston and 
the California areas, EPA has proposed and finalized, also pursuant to 
the settlement agreement, determinations as to whether a number of 
other 1-hour ozone nonattainment areas throughout the country attained 
the 1-hour ozone standard by their applicable attainment dates. As in 
the case of Houston, the purpose of these determinations is limited to 
effectuating 1-hour ozone anti-backsliding requirements. See, 
Baltimore, MD 77 FR 4940 (February 1, 2012), NY-NJ-CT 77 FR 3720 
(January 25, 2012), Eastern Massachusetts 77 FR 31496 (May 29, 2012), 
Western Massachusetts 77 FR 25362 (April 30, 2012), and Greater 
Connecticut 77 FR 15607 (March 16, 2012).
    EPA has considered BCCA's comment, and we believe that EPA's 
responses here will relieve the groups of their concerns that EPA is 
``ignoring the May 14 rule with respect to the [Houston] area'' and 
also allay their fears that EPA makes determinations such as this 
``only with respect to [Houston].''

II. Final Action

    After revocation of the 1-hour standard, EPA must continue to 
provide a mechanism to give effect to the 1-hour anti-backsliding 
requirements. See SCAQMD v. EPA, 472 F.3d 882, at 903. As stated in 
EPA's proposal, EPA is making its determination here pursuant to, and 
solely with the purpose and effect of discharging this obligation. As 
EPA stated in its proposal, EPA is making this attainment deadline 
determination for the revoked standard for the strictly limited purpose 
of effectuating specific 1-hour ozone anti-backsliding requirements. 
Based on the facts and rationale set forth in our February 1, 2012, 
proposal (77 FR 4937) and in today's rulemaking, EPA has determined 
that the HGB area failed to attain the 1-hour ozone standard by its 
applicable attainment date.
    This determination bears solely on the HGB's obligation with 
respect to two required 1-hour anti-backsliding measures: i.e., 1-hour 
contingency measures for failure to attain under section 172(c)(9), and 
fee programs under sections 182(d)(3) and 185 of the CAA. This final 
determination of failure to attain by the area's 2007 attainment date 
does not result in reclassification of the area under the revoked 1-
hour standard. As a severe 1-hour nonattainment area, the HGB area is 
not subject to reclassification for the 1-hour standard, and in any 
event EPA is no

[[Page 36403]]

longer required to reclassify any area to a higher classification for 
the 1-hour ozone NAAQS based upon a determination that the area failed 
to attain that NAAQS by its attainment date. 40 CFR 51.905(e)(2)(i)(B).
    With respect to the 1-hour ozone anti-backsliding requirement for 
contingency measures, the Texas SIP included contingency measures to 
achieve an additional 3 percent reduction in NOx and VOC emissions in 
2008. The contingency measure reductions for 2008 were to be obtained 
from on-road and off-road mobile control measures already being 
implemented. EPA has previously approved the State's 1-hour ozone 
attainment demonstration and Rate of Progress plans for the HGB area 
which included contingency measures. See: 71 FR 52670, 70 FR 7407, 66 
FR 57195, and 66 FR 20750. Thus, the reductions from contingency 
measures have already been achieved and therefore this final 
determination of failure to attain by the area's 1-hour ozone 
attainment date would not trigger any additional contingency measures.
    With respect to the 1-hour ozone anti-backsliding requirement for 
penalty fees, section 182(d)(3) of the CAA requires SIPs to include 
provisions required by section 185 of the CAA. Section 185 requires 1-
hour ozone SIPs for severe areas to provide a program requiring each 
major stationary source of ozone precursors located in the area to pay 
fees to the State when the area has failed to attain by the attainment 
date. This final determination of failure to attain by the area's 1-
hour attainment date bears on the obligation relating to implementation 
of the 1-hour anti-backsliding penalty fee program under section 
182(d)(3) and 185, unless that obligation is terminated.

III. Statutory and Executive Order Reviews

    This action makes a determination, based on air quality, that this 
area did not attain the 1-hour ozone standard, and it does not impose 
any requirements beyond those required by federal statute or 
regulation. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to the requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address disproportionate human health or environmental effects with 
practical, appropriate, and legally permissible methods under Executive 
Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because it would not apply in Indian country located in the state, and 
EPA notes that it will not impose substantial direct costs on tribal 
governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 20, 2012.
    Filing a petition for reconsideration by the Administrator of this 
final rule does not affect the finality of this action for the purposes 
of judicial review nor does it extend the time within which a petition 
for judicial review may be filed, and shall not postpone the 
effectiveness of such rule or action. This action may not be challenged 
later in proceedings to enforce its requirements. (See section 
307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Oxides of nitrogen, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: June 6, 2012.
Samuel Coleman,
Acting Regional Administrator, Region 6.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart SS--Texas

0
2. Section 52.2275 is amended by adding paragraph (d) to read as 
follows:

Sec.  52.2275  Control strategy and regulations: Ozone.

* * * * *
    (d) Determinations that Certain Areas Did Not Attain the 1-Hour 
Ozone NAAQS. EPA has determined that the Houston/Galveston/Brazoria 
severe-17 1-hour ozone nonattainment area did not attain the 1-hour 
ozone NAAQS by the applicable attainment date of November 15, 2007. 
This determination bears on the area's obligations with respect to 
implementation of two specific 1-hour ozone standard anti-backsliding 
requirements: section 172(c)(9) contingency measures for failure to 
attain and sections 182(d)(3) and 185 major stationary source fee 
programs.
* * * * *

[FR Doc. 2012-14713 Filed 6-18-12; 8:45 am]
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